In a January 18, 2005 Award, the undersigned arbitrator directed the parties,
Business
Agents Association
(hereinafter referred to as the Association) and Teamsters Local Union No. 662
(hereinafter referred to as either the Local
or the Employer), to engage in a unit clarification proceeding before the National Labor
Relations Board to determine
whether the position currently occupied by Mary Habeck was excluded from the bargaining
unit. If the position was not
confidential, the Award found that the Employer violated the collective bargaining agreement
by laying off employee
Karen Haase and replacing her with Habeck. If the position was determined to be
confidential, as alleged by the
Employer, then there was not a contract violation.

On August 3, 2005, the Employer provided the Arbitrator with a copy of the
Regional
Director's determination
in Case 18-UC-405, wherein the Director, acting with authority to decide the matter for the
Board, determined that the
position occupied by Habeck was properly excluded from the bargaining unit as confidential.

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The Association replied on August 11, asserting that the lapse of nearly two years
between the layoff and the
unit clarification unfairly allowed the Employer to create a misleading paper trail, causing the
Board to wrongly conclude
that Habeck's position is confidential. That conclusion, the Association submits, is contrary
to the great weight of the
record evidence before the arbitrator, and the arbitrator should make an independent
judgment based on that record.
Even if the arbitrator were to decide to defer to the NLRB, he should, at a minimum, revisit
the record to determine when
the position became confidential. The Grievant had seniority rights to the position at least to
that point, and is entitled
to a remedy.

The Award in this case was phrased in the alternative, depending upon the outcome
of
the unit clarification
proceeding:

1. If the Local's transfer of duties to a new
unilaterally-created confidential secretarial position
outside the bargaining unit created a position occupied by a confidential employee within the
meaning
of the National Labor Relations Act, as amended, then the Local did not thereby violate the
Agreement.

2. If the Local's transfer of duties to a new unilaterally-created confidential
secretarial
position outside the bargaining unit did not create a position occupied by a confidential
employee within the meaning of the National Labor Relations Act, as amended, then the
Local did thereby violate the Agreement.

As noted in the initial Award, the question of confidential status is for the National
Labor Relations Board,
not the arbitrator. For that reason, the parties were directed to proceed before the Board.
They have
done so, and the Board has ruled. Whether the arbitrator agrees with the Board's decision is
irrelevant,
both as a matter of law and by the specific terms of the Award. The arbitrator therefore
declines the
Association's invitation to make a separate judgment on the question of confidential status.

The Association's argument that the arbitrator should determine the point at which
the
position became
confidential and should award a remedy for the Grievant's losses prior to that time is
ingenious, but it assumes a fact
that is not established on the record. The duties that the Board relied on for its
determination are largely the same duties
as were described by Reardon in his testimony at the arbitration hearing. This suggests that
the Board would have
concluded that the position was confidential from its inception.

By the terms of the original Award, there is no contract violation. On the basis of
the foregoing and the record
as a whole, I have made the following

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SUPPLEMENTAL AWARD

The Local's transfer of duties to a new unilaterally-created confidential secretarial
position outside the
bargaining unit created a position occupied by a confidential employee within the meaning of
the National Labor
Relations Act, as amended. The Local did not thereby violate the Agreement and the
grievance is denied.